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How The Weinstein Co. Might Get Revenge Over 'Lovelace' Lawsuit (Analysis)

Don't assume so quickly that "Deep Throat" is protected by copyright.

On Friday, The Weinstein Co. will release Lovelace, a biopic of Linda Boreman-- better known by her stage name Linda Lovelace -- and how she came to star in the porn classic, Deep Throat. That is, the film will come out unless a judge intervenes.

Arrow Productions, which says it owns rights to Deep Throat, has filed a lawsuit against The Weinstein Co., Millennium Films, Eclectic Pictures and United Entertainment. Alleging copyright and trademark infringement, the plaintiff is asking for an injunction. all money from the film and $10 million in further damages.

Harvey Weinstein is no stranger to intellectual property fights. Just weeks ago, he was fighting to retain the title to The Butler. And before that, Weinstein battled Grammy-winning singer Sam Moore, who alleged that the 2008 film Soul Men was a thinly-veiled portrayal of his music career and violated his rights, including trademarks. Weinstein couldn't do much about The Butler situation because of the sanctity of arbitration. But he was able to defeat the lawsuit over Soul Men (which is still on appeal) thanks to the power of the First Amendment.

Lovelace defendants might eventually lean on the First Amendment to defeat claims that their movie uses a trademarked title and more than five minutes of footage from Deep Throat without a license. But the case holds an even more scintillating possibility -- a full-throated examination of the original 1972 distribution of Deep Throat and an answer to the question of whether the porno doesn't actually belong to Arrow, but rather to the public.

First, some background.

Less than two years ago, Arrow Production settled a curious case with competitor V.C.X., another adult film company that said it owned rights to another classic, Debbie Does Dallas.

Arrow alleged that V.C.X. had sold copies of Deep Throat to the public without a license. That allegation caused V.C.X to claim that the only reason it had done so was because Arrow had first started distributing Debbie Does Dallas. In other words, a bit of revenge.

V.C.X. grounded its legal defense on the charge that in a 1970's era where the mob controlled the porn business, the distributors played fast and loose and distributed their adult movies without a copyright notice. According to old copyright law, such distribution would mean that the films were thrust into the public domain.

But before Arrow's lawsuit against V.C.X. went too far, the parties signed a rather unusual stipulation to end the dispute. Instead of settling on confidential terms, the parties went so far as to articulate in the stipulation that "while there may have been prints of Deep Throat that were circulated without a copyright notice, those were amongst the many unauthorized prints that were made by the film lab without knowledge or authorization of [Deep Throat's producer Louis] Peraino or his corporation and sold illegally."

Other circulated prints of Deep Throat were said to have been in firm control of Peraino, who leased the theaters, paid all of the employees and collected revenue in a process called "four walling," which might provide an exception to the ramifications of distributing without a copyright notice.

The V.C.X. case was settled, but more importantly, the judge dismissed the allegations concerning the validity of the copyrights and trademarks without prejudice. It's still ripe for a judge's examination.

Weinstein never followed up on his threat to sue over alleged shenanigans in the Butler fight, but if he wishes, there are some canaries in the coal mine of the porn industry.

Even if Arrow is able to confirm the validity of its intellectual property hold on Deep Throat, it still faces an uphill battle over Lovelace. Weinstein has other potential outs from this lawsuit.

For example, a recent Ninth Circuit decision that addressed Jersey Boy's "fair use" of old Ed Sullivan Show clips might tie onto Arrow's allegation that Lovelace infringes the copyright on Deep Throat by showing too much from the old film. Weinstein will likely argue that Lovelace made "transformative" use of the old footage, conveyed historically factual information and won't threaten Arrow's market for Deep Throat. In fact, Lovelace could bring renewed consumer awareness to Deep Throat, helping its market value, a factor that was recognized in a judge's recent decision to throw out a lawsuit over Woody Allen's Midnight in Paris by the Faulkner literary estate.

And as for trademarks, because Lovelace is likely to be seen as First Amendment-eligible material, the question will probably turn to whether using "Lovelace" has artistic relevance and explicitly misleads to the source. A judge once rejected a claim by Ginger Rogers over Federico Fellini's film, Ginger and Fred, because she had failed to show its title was improper. A biopic seems to be covered by this standard.

In the end, the lawsuit might turn out to be a winner for Weinstein. Spending money on lawyers is of course expensive, but maybe there's a case to be made that these legal disputes can get credit as a marketing expense.